Citation Nr: 9805377
Decision Date: 02/24/98 Archive Date: 03/02/98
DOCKET NO. 96-22 999 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to an increased disability rating for service-
connected neurofibromatosis, currently evaluated as 60
percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. L. Kane, Associate Counsel
INTRODUCTION
The veteran had active military service from March 1989 to
November 1994 with sixteen years of prior active service.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a December 1995 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
North Little Rock, Arkansas, which granted service connection
for neurofibromatosis and assigned a 10 percent disability
rating.
After the veteran perfected his appeal, the Hearing Officer’s
decision contained in the supplemental statement of the case
dated November 1996 granted a 60 percent disability rating.
As indicated below, neurological disabilities such as
neurofibromatosis are rated according to the severity of
motor, sensory, or mental impairment. See 38 C.F.R. § 4.120
(1997). Since higher disability ratings are available under
the diagnostic codes applicable to diseases of the peripheral
nerves, see Diagnostic Codes 8510 through 8730, the
assignment of a 60 percent disability rating was not a full
grant of the benefit sought on appeal. After the veteran has
perfected his appeal, a subsequent rating decision awarding a
higher rating, but less than the maximum available benefit,
does not abrogate the pending appeal. See AB v. Brown, 6
Vet. App. 35 (1993). Therefore, this issue is before the
Board.
REMAND
Additional development is warranted prior to appellate
disposition of the veteran’s claim.
During service, the veteran was diagnosed with
neurofibromatosis, and he underwent multiple surgical
procedures for removal of tumors on the cervical spine (with
C2-5 laminectomy), lumbar spine (with total L1-2 laminectomy
and L4-5 laminectomy), left ulnar nerve, and both inner
thighs. A VA neurological examination in July 1995 showed no
neurological deficits. The veteran’s complaints at that time
were pain in the lower sacral area radiating to the rectum
and headaches. In August 1996, the veteran had a personal
hearing, and his complaints included right-sided denervation
and numbness in the right hand, right leg, and right toe; low
back pain; limitation of motion; and headaches. An MRI of
the lumbar spine in May 1996 showed a neurofibroma intradural
at the level of T12-L1 on the right.
It is necessary to accord the veteran an additional VA
neurological examination for the following reasons. The
veteran alleges the onset of new symptomatology since the VA
examination in July 1995, and he maintains that several
current symptoms/findings are due to his service-connected
disorder. His current complaints/findings have not been
fully evaluated, and a medical examiner has not evaluated the
current intradural neurofibroma at T12-L1 and whether there
are any residuals from that tumor. Therefore, the VA
examiner should address the severity of the veteran’s
complaints and express an opinion as to whether any of his
current complaints are appropriately considered
manifestations of the service-connected neurofibromatosis.
Accordingly, in order to assure that VA’s statutory
obligation to assist the appellant is fulfilled, an
additional examination is required. See Caffrey v. Brown, 6
Vet. App. 377, 381 (1994); 38 C.F.R. § 3.327(a) (1997).
Furthermore, pursuant to 38 C.F.R. § 4.120, a neurological
disability, such as neurofibromatosis, is usually rated
according to impairment of motor, sensory, or mental
functioning. In rating peripheral nerve injuries and their
residuals, attention should be given to the site and
character of the injury, the relative impairment in motor
function, trophic changes, or sensory disturbances. Based on
the results of the VA examination, the RO should consider
whether a rating might appropriately be applied under other
diagnostic codes potentially applicable to the veteran’s
neurofibromatosis, such as the diagnostic codes for
peripheral nerve injuries.
In addition, there are medical records which the RO should
attempt to obtain. The veteran testified in August 1996 that
he had recently been treated for his neurofibromatosis by a
private physician and neurosurgeon. These records are
relevant to his claim for an increased rating, especially
since they are more current than the report of the VA
examination in July 1995, and are necessary for a full and
fair adjudication of his claim. Robinette v. Brown, 8 Vet.
App. 69 (1995). Therefore, an effort to obtain these records
is warranted.
Accordingly, while the Board sincerely regrets the delay, in
order to assure that the evaluation of the veteran’s
disability is a fully informed one, the case is REMANDED for
the following:
1. Request that the veteran provide a
list of the names and addresses of any
medical providers who have treated him
for his service-connected
neurofibromatosis since his separation
from service. After securing any
necessary releases, request from the
sources listed by the veteran all records
of any treatment which are not already on
file. All records obtained should be
associated with the claims file. If
private treatment is reported and those
records are not obtained, provide the
veteran and his representative with
information concerning the negative
results, and afford an opportunity to
obtain the records. 38 C.F.R. § 3.159
(1997).
2. Schedule the veteran for a thorough
VA neurological examination (and any
other examinations, if indicated) at the
VA facility which is closest to the
veteran’s residence and that has the
appropriate facilities and specialists.
It is very important that the examiner be
afforded an opportunity to review the
veteran's claims file, especially the
service medical records, and a copy of
this remand prior to the examination.
The examiner is asked to indicate in the
examination report that he or she has
reviewed the claims file.
The neurological examiner should conduct
all necessary tests and studies in order
to ascertain the severity of the
veteran’s service-connected
neurofibromatosis and should review the
test results before submitting the
examination report. The examiner should
fully evaluate all of the veteran’s
complaints such as right-sided
denervation and numbness in the right
hand, right toe, and right leg; low back
pain; limitation of motion; and
headaches. The examiner should express
an opinion as to which of the veteran’s
complaints are at least as likely as not
related to his service-connected
neurofibromatosis. The examiner should
also express an opinion as to whether the
veteran’s degenerative disc disease at
L5-S1 is at least as likely as not
related to his service-connected
neurofibromatosis.
The medical rationale for all opinions
expressed must be provided.
3. Following completion of the above,
review the claims folder and ensure that
all of the foregoing development actions
have been completed. If any development
is incomplete, appropriate corrective
action should be taken. Specific
attention is directed to the examination
report. If the examination report does
not include fully detailed descriptions
of all test reports, special studies or
opinions requested, the report should be
returned to the examiner for corrective
action. 38 C.F.R. § 4.2 (1997).
4. Thereafter, readjudicate the
veteran’s claim for an increased
disability rating for his service-
connected neurofibromatosis. Based on
the results of the VA examination,
consider whether any sensory or motor
manifestations of the veteran’s service-
connected neurofibromatosis should be
rated under applicable diagnostic codes.
See 38 C.F.R. § 4.120 (1997).
If any benefit sought on appeal remains
denied, provide the veteran and his
representative a supplemental statement
of the case, and allow an appropriate
period of time for response. The veteran
and his representative are free to
furnish additional evidence and argument
while the case is in remand status.
Booth v. Brown, 8 Vet. App. 109 (1995).
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The veteran need take no
further action until he is further informed. The purpose of
this REMAND is to obtain additional medical information. No
inference should be drawn regarding the final disposition of
the claim as a result of this action.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (Historical and Statutory Notes) (West Supp. 1997).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
J. SHERMAN ROBERTS
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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